Non compos mentis, or, The law relating to natural fools, mad-folks, and lunatick persons inquisited and explained for common benefit / by John Brydall, Esq.

SECT. II. The Remarks concerning Mad, or Distracted Persons.

I. REMARK.

THE true Account of the Cause of Distraction is this: When the Animal Spirits, by some Accident or other, are so over-heated, that they become unservice∣able* 1.1 to cold and sedate Rea∣soning; and then Reason being thus laid aside, Fancy gets the Ascendent, and Phaeton-like, drives on furiously, and inconsistently. This Combustion of the Spirits hap∣pens, sometimes by over-great Intention of the Mind, in long and constant Study; sometimes by a Fever, which inflaming the Blood, that communicates the Incendium to the Spirits, which take the Original from it: But most usually by the Rage and Violence of some of the Passions, (whether Irascible, or Concupiscible, as they are wont to be distinguish∣ed) a Man setting his Heart vehemently upon some * 1.2 Object or other, the Spirits are set on fire, by the Violence of their own Motion; and in that Rage are not to be governed by Reason. This we have sad Examples of, in Love, in Grief, in Jealousie, in Wrath, and Vexation; and indeed, (saith my Author) Bethlehem is filled with the Instances.

II. REMARK.

By the Statute of Praerogativa Regis, the King of England is to provide, that* 1.3 the Lands of the Furor Men be safely kept, without waste; and that they, and their Families, (if they have any) shall be maintained with the Profits thereof; and that the Residue be kept for their use, and delivered unto them, when they come to be of right Mind: So as their Land shall not be aliened, nei∣ther shall the King have any Profit thereof to his own use: But if they die in such Estate, the Residue shall be distri∣buted for their Souls, by the Advice of the Ordinary.

III. REMARK.

The words of F. N. B. 232. That the King is bound of Right, by his Laws, to defend his Subjects, and* 1.4 their Goods, and Chattels, Lands, and Tenements, ex∣tend as well to one Non compos Mentis, as a Mad-man, as to an Idiot a Nativitate; but in Case of Non compos mentis, the King shall not have Interest in a Mad-man, that is wholly deprived of his Understanding, as he hath in the Idiot; because that a distracted Man may recover his Memory that he hath lost; and therefore, in the Case of the Idiot, or Fool Natural, the Law saith, Rex habe∣bit Custodiam; but in the Case of a Mad-man, or Non compos mentis, Rex providebit. And as to Alienation made by a Man distracted, the words are all one, as they are in the Case of the Idiot; and therefore, after Office found thereof, the Alienation, Gift, &c. of him who is by Accident deprived of his Wits, are in equal Case with the Alienation, or Gift of an Idiot a Nativitate. And

the said words of the Writ, in the Register, Quia accepi∣mus quod J. de B. fatuus &

Idiota existit, &c. extend* 1.5 as well to another Non com∣pos mentis, as Idiota a nati∣vitate, a Fool Natural: For afterwards, in the same Writ it is said, Diligenter inquiras, si Idem fatuus & Idiota, sit necne, & si sit, tum utrum a nativitate sua,* 1.6 an ab alio tempore, tunc a quo tempore & qualiter, & quomodo, & si lucidis gau∣deat intervallis, & si Idem J. in eodem statu existens terras, aut Tenementa aliqua alienavit necne, &c. So that it appeareth, that in Judgment of Law, Fatuus, & Idiota, include as well Non compos mentis, as Idiota a Nativitate; and therefore they are in the same Case, as to the Alienation of their Lands, and Tenements, Goods, and Chattels.

IV. REMARK.

A Furor Man cannot appoint an Attorney, as appears by Britton; for he tells us, Chescun ne puit mye faire at∣torne. Car enfant dedens* 1.7 Age, ne muet, ne surd, ne fol naistre ne homme ar∣rage, ou auterment sans discretion, ne puit mye faire attornes.

V. REMARK.

There is required in them who contract Matrimony, a sound and whole Mind to consent; and therefore, he that is mad, or distracted, with∣out* 1.8 Intermission of Fury, cannot enter into the Bonds of Wedlock: So says the Author of the Treatises en∣tituled, The Woman's Law∣yer, l. 2. sect. 10. p. 57. And with him concurs A∣mesius, in his Cases of Con∣science: The Consent of Wedlock, (saith he) mus•…•… be voluntary and free, else it is not esteemed a Human Consent: And hence, the Consent of such as have not use of Reason, (as Mad∣men) is of no force to such a Contract, Lib. 5. c. 35. Question 4. nu. 24, 25. p. 201. Engl. Edit. 1643. Such one may not consent to Marriage, and his Issue will not be legitimate. Trin. 3 Iac. B. Regis. Stiles.

VI. REMARK.

Tho' Furor, or Madness, hinders the contracting of Matrimony, yet it shall not* 1.9 take away that Marriage that is already contracted, as appears by the Civil and Canon Laws, D. 23. 1. 8. D. 23. 2. 16. 2. Instit. Iu∣ris Canonici Lib. 2. Tit. 12. Arnoldus Corvinus, in his Ius Canonicum, Lib. 2. Tit. 13. de Nuptiis.

VII. REMARK.

A Furor Man ought not to be a Witness in any Cause, be it either Civil, or Cri∣minal, Decret. 2. a. Pars* 1.10 caus. 3. Qu. 19. c. 14. De∣cret. Greg. Lib. 3. Tit. 27. c. 3. de Successionibus ab intestato, Corvinus in his Ius Canonicum, lib. 3. tit. 27. de Testibus. Ulpianus, tit. 20. de Testamentis. D. 28. 1. 20. 4. Swinburn in his Trea∣tise of Wills, Part 4. Sect. 21. f. 186. a. Edit. 1590.

VIII. REMARK.

Children, and Mad-men, * 1.11 altho' they have not the next actual power of using things, yet they have a ra∣dical power, because they are Men: Amesius in his Cases of Conscience, lib. 5. c. 41. qu. 1. sect. 6. And by the Law of Nations, Chil∣dren are then capable of in∣heriting † 1.12 an Estate, tho' they be justly restrained from managing of it, by reason of their immature Judgment. Grotius de jure belli & pacis, Lib. 2. Cap. 5. Sect. 2.

IX. REMARK.

Bracton in his Treatise of the Laws and Customs of England, shewing by what Persons possession of things may be acquired, says thus of the furious Man; Furio∣sus* 1.13 affectum retinendi ha∣bere non poterit sine Cura∣tore, quia non est aliud de eo, nisi ad similitudinem ejus, qui dormienti pluviam ip manum projecerit. Et qui accipere debet, & retinere, oportet quod habeat affectionem, & intellectum percipien∣di, & retinendi. Item qui curare debet, & Custodiam habere, oportet eodem modo quod habeat Intellectus, quia si furiosum miseris ut possideas, nequaquam per eos vide∣ris possessionem apprehendisse, quia intellectum non habet.

X. REMARK.

He that is a Mad-man, is uncapable to be a Judge, or an Arbitrator, for want of* 1.14 Understanding and Discre∣tion. Mirror of Iustices, c. 2. sect. 2. p. 116. West. Symb. part 2. sect. 23, 26, 27. Neither can be an Essoiner, or Excusator. Mir∣ror, c. 2. sect. 30. p. 175.

XI. REMARK.

One that is a Mad-man, cannot Attorn; for that he that hath no Understanding, cannot agree to the Grant. 18 E. 3. 53. 6 Co. f. 69. a. Sir Moyle Finch's Case.

XII. REMARK.

To a lawful Contract there are required Persons fit to contract: Hence Mad-men* 1.15 •…•…re not fit to make Con∣•…•…racts, or Alienations; and under that Title, by the Civil Law of all Countries, are deservedly accounted Nullities. Amesius, l. 5. c. 42. qu. 1. of Contracts, D. 39. 5. 23. 1. Cowel's Institutes lib. 2. tit. 8. n. 3. p. 108. F. N. B. f. 292. C. Fleta lib. 3. c. 3. n. 10. p. 178, & lib. 2. c. 56. nu. 19. p. 122. Bracton, lib. 3. tract. 1. c. 2. n. 8. f. 100. A. & lib. 5. tract. 5. c. 20. nu. 1. de Exceptionibus. Fleta, lib. 6. c. 40. nu. 1. p. 434. Cowel, lib. 3. tit. 20. nu. 7. p. 161. Fleta, lib. 2. c. 60. nu. 26. Cowel, lib. 2. tit. 7. nu. 4. de Donatibus. Britton, c. 28. f. 62. b. 63. a. &c. 34. f. 90. a. Mirror de Iustices, c. 2. sect. 27. p. 161.

XIII. REMARK.

In all Conveyance, or Purchase for Joynture, unless it be by Fine, or Common Recovery, he which makes the Estate, must be a Person able to convey, &c. at the time of the Joynture making; or else it is not good.

He must not therefore be Attaint of Treason, an Alien born, under Age, or Non compos mentis, a Mad-man. The Woman's Lawyer, lib, 3. c. 31. p. 188.

XIV. REMARK.

It is a good Exception for the Person of him, that complaineth, or bringeth any Action, to say, he is Fu∣riosus, a Mad-man, because such a one differeth not much from a Beast, that wants Reason, Lib. 5. tract. 5. c. 20. nu. 1. f. 420. b. Fleta, lib. 6. cap. 38. nu. 1. Stamford Super Praerogativam Regis, cap. 10. fol. 36. b. Edit. 1567.

XV. REMARK.

He that promiseth, should be endued with Reason, which renders the Promises of Mad-men void, and of no force, Grotius de jure* 1.16 bells & pacis, lib. 2. c. 11. sect. 5. And it is the same Law in case of Oaths made by Men distracted: For they that swear, should be of sound Mind, and should use great deliberation, before* 1.17 they take any Oaths. I∣dem, lib. 2. c. 13. sect. 2. Sheppard in his Abridgment, tit. Idiots and Lunaticks, tells us, That a Mad-man cannot promise, or contract for any thing to bind himself.

XVI. REMARK.

A Copyholder of unsound Memory, as a Furor Man, cannot make a Forfeiture of his Estate. Sheppard's Court-Keeper's Guide, cap. 22.

XVII. REMARK.

Any Man may be a Steward of a Copyhold Mannor; and therefore, if an Infant, Lunatick, or Non compos mentis, a Man distracted, be made Steward; all Acts that he doth, according to his Office, are good. Shep∣pard's Court-Keeper's Guide, cap. 19. p. 115.

XVIII. REMARK.

Every Deed, Feeoffment, or Grant, which a Furor∣man makes, is avoidable, and yet shall never be avoided by himself; because 'tis a Maxim in Law, That no Man of full Age, shall, by any Plea, pleaded by him, be re∣ceived, to disable his own Person, or stultifie himself: Besides, another Reason is rendred, sc. Because that when he recovers his Memory, he cannot know what he did when he was Non compos mentis. 4. Co. 124. b. Bever∣ley's Case. Littleton, sect. 405. Noy in his Treatise of the Grounds of the Laws of this Nation, cap. 28. Of Con∣veyances.

XIX. REMARK.

Altho' Mad-men themselves cannot be received to disa∣ble themselves, yet twelve Men, upon their Oaths, may find the Truth of the Matter, in the Case of a Feoffment, or other Transact in Pais: But if Mad-men alien by Fine, or Recovery, this shall not only bind themselves, but their Heirs also. Co. Litt. f. 247. a. 4. Co. 124. a. Beverley's Case of Non compos mentis. Perkins, sect. 24.

XX. REMARK.

There are in our Books of Law found four several Opinions, concerning the Alienation, or other Act of* 1.18 a Man Non compos mentis, &c. For First, Some are of Opinion, That he may avoid his own Act, by Entry, or Plea.

Secondly, Others are of Opinion, That he may avoid it by Writ, and not by Plea.

Thirdly, Others, That he may avoid it, either by Plea, or Writ; and of this Opinion is Fitzherbert, in his Natura Brevium.

Fourthly, Littleton, sect▪ 405. is of Opinion, That neither by Plea, nor by Writ, nor otherwise, he himself shall avoid it, but his Heir, in respect his Ancestor was Non compos mentis, shall avoid it by Entry, Plea, or Writ: And therewith the greatest Authorities of the Law-Books agree; and so it was resolved with Master Little∣ton, in Beverley's Case, where it is said, That it is* 1.19 a Maxim of the Common Law, That the Party shall not disable himself.

XXI. REMARK.

If a Furor Man, or a Man of Non sane Memorie, make a Feoffment, &c. he himself cannot enter, nor have a Writ, Dum non fuit compos mentis; but after his Death, his Heir may well enter, or have the said Writ of, Dum non fuit compos mentis, at his Choice. Littleton, sect. 406. Exposition of Terms of the Law, f. 138. a. b. tit. Dum non fuit compos mentis. Natura Brevium, f. 128. a. b. Edit. 1551.

XXII. REMARK.

Mad-folks, during the time of their Furor, or Insanity of Mind, cannot make a* 1.20 Testament, nor dispose any thing by Will; no, not ad pias Causas; the Reason is most forceable, because they know not what they do: For in making of Testa∣ments, the Integrity and Perfectness of Mind, and not Health of the Body, is requisite; and thereupon arose that common Clause, used in every Testament al∣most: Sick in Body, but of perfect Mind, and Memory. Swinburn▪ in his Treatise of Testaments and Last Wills, 2d Part, sect. 3. f. 34. b. Edit. 1590. Inst. 2. 12. 1. Cod. 6. 22. 9. Cod. 6. 36. 5. Cod. 6. 22. 3. Caius, lib. 2. tit. 2. de Testamentis. Ulpianns. tit. 20. de Testamentis. 6 Co. 23. Marquess of Winchester's Case.

XXIII. REMARK.

The Impediment of Furor, or Madness, is so strong, that if the Testator make his Testament after this Furor, or Madness have overtaken him, and whiles as yet it doth possess his Mind, albeit the Furor afterwards departing, or ceasing, the Testator recover his former Under∣standing, yet doth not the Testament made, during his former Fit, recover any force * 1.21 or strength thereby.

Cod. 6. 22. 9. Instit. 2. 12. 1. Swinburn in his Tract of Wills, Part 2. sect. 3. nu. 3. p. 36. b. 37. a. Edit. 1590. Godolphin's Tract, entituled, The Orphan's Legacy, Part 1. cap. 8. nu. 2.

XXIV. REMARK.

If a Man, whilst he is mad, or in a distracted Condi∣tion, be admitted by a Judge to levy a Fine, his Decla∣ration* 1.22 of the Uses shall bind him and his Heirs, as long as the Fine remaineth in force, 2 Co. f. 58. b. Co. lib. 12. f. 123. Mansfield's Case. 10 Co. f. 42. b. Mary Portington's Case.

XXV. REMARK.

If a Furor Man grant a Rent-Charge out of Land, his Heir may avoid it, and hold it discharged. Sheppard in his Abridgment. Tit. Idiots.

XXVI. REMARK.

He that is not a good Grantor, cannot make a good Grant, or Surrender of Copyhold-Land, without a spe∣cial Custom to enable him thereunto: And hence it is, that a Surrender made by a Mad man is not good, but void in Law. Sheppard of Copyholds, c. 12. p. 117, 118.

XXVII. REMARK.

A Surrender, or Grant of Copyhold-Land, may be made to a Lunatick, and to one that was of good and

sound Memory, and by the Visitation hath lost it. Shep∣pard's Court-Keeper's Guide, c. 19. p. 118, 119.

XXVIII. REMARK.

If a Man of None sane* 1.23 memorie be a Judge, all Acts done by, and before him, shall stand good in Law.

XXIX. REMARK.

If a Woman being in a Frenzy, and of unsound Me∣mory, kill her Husband, or another Man or Woman, she shall not forfeit her Dower. 12 H. 3. Dower 183. Per∣kins, sect. 365. Tit. Dower.

XXX. REMARK.

A Descent, during Minority, Marriage, Imprisonment, Non sanae mentis, or being out of the Realm, do not take away an Entry. Noy in his Grounds of the Laws, c. 16. Of Descents.

XXXI. REMARK.

A Man becoming Non compos mentis, by Accident, is disseised, and suffers a Descent, albeit he recover his Me∣mory and Understanding again, yet he shall never avoid the Descent. Coke in his Comment on Littleton, sect. 405. f. 247. a.

XXXII. REMARK.

Albeit the Eldest Son of a Sovereign Prince be unfit to bear Rule, albeit he be unable to Govern, either others, or himself; as if he be in a high degree furious, or foo∣lish, or otherwise defective in Body, or in Mind, (unless

he degenerate from Humane Condition) yet he cannot therefore be excluded from Succession; because it is due unto him, not in respect of Ability, but by reason of his Priority of Birth. Sir Iohn Heyward in the Life of William II. p. 147, 148. Edit. 1613.

From the Remarks come we to the Queries concerning Mad-men.

Notes

• * 1.1

  Dr Goodman's Treatise, en∣tituled, The Penitent pardoned, under the Parable of the Prodigal, Part 1. c. 5. p. 123, 124.
• * 1.2

  Mad-men have always before their Eyes, those Idea's and Shapes which work the Apprehension of their Fury, and hold them in the Vision and inward View of that which most troubleth their diseased Brain. French Academy, c. 18. Of Intemperance.
• * 1.3

  17 E. 2. e. 10.
• * 1.4

  4 Co. 128. Beverley's Case. of Non compos mentis.
• * 1.5

  Register of Original and Ju∣dicial Writs, f. 266. a.
• * 1.6

  Register, f. 2668.
• * 1.7

  Cap. 126. f. 285. b.
• * 1.8

  Furor, says the Lawyer Gaius. sponsalibus impedimento sit, plus quam manifestum est. D. 23. 1. 8. Furor contrahi Matrimonium non sinit, quia consensu opus est, says Paulus, D. 23. 2. 16. 2. Furiosus Matrimonium contra∣here non potest. Decret. Greg. l. 4. tit. 1. c. 24. Innocentius 3. Versil. Episcopa. dilectus filius R. proposuit, quod filiam suam cui∣dam Matrimonaliter copulavit. Cum autem eadem mulier, cum ipso viro, qui continuo furore la∣borat, morari non possit, & pro∣pter alienationem mentis non po∣tuerit intervenire consensus: man damus, quatenus si rem noveris ita esse, praefatas personas cures ab invicem separare.
• * 1.9

  Furor impedit Matrimonium contrahendum, sed non dirimit con∣tractum.
• * 1.10

  Furiosus aut mente Captus, non potest esse Testis.
• * 1.11

  Lex duodecïm Tabularum, fu∣riosum, in curatione jubet esse A∣gnatorum. Ulpian, tit. 12. de Curatoribus.
• † 1.12

  Plutarch de Fort. Alex. l. 2. speaking of Children saith, That Children have a Right to the Inheritance, but not to the use of it.
• * 1.13

  Furiosus sine tutoris auctoritate non potest incipere possidere: Quia affectionem tenendi non habet, licet maxime corpore suo rem contingat: Sicuti si quis dormienti aliquid in manu ponat, D. 41. 2. 1. 3.
• * 1.14

  Non omnes Iudices dari possunt, qui Iudicis dandi jus habent: Quidam enim Lege impediuntur ne Iudices sint, quidam natura; quidam moribus, natura; ut surdus, mutus, & perpetuo furiosus, & impubes, quia judicio carent, D. 5. 1. 12. 2.
• * 1.15

  Note, That every Alienation of a Man's Right, all Contracts betwixt Man and Man, all Leagues, &c. betwixt Princes, ought to be done with sound Iudgment; there∣fore the Acts of the Will, that are express'd with overt signs, are to be understood, the Acts of a Mind endued with Reason, of which a Man distracted is wholly deprived, and therefore uncapable of per∣forming any profitable things; which made King Achish say to his Servants, Lo, you see the Man is mad; Wherefore then have ye brought him to me? 1 Sam. 21. 13, 14, 15.
• * 1.16

  Promissio requirit usum Ratio∣nis in promittente; ideo furiosi nulla est promissio.
• * 1.17

  Animus rationis compos & de∣liberatus.
• * 1.18

  Coke in his Comment on Lit∣tleton, § 405. f. 247. a. b.
• * 1.19

  4 Co. f. 126, 127.
• * 1.20

  Furiosi testamentum facere non possunt, quia mente carent. In ad∣versa corporis valetudine mente captus tempore testamentum fa∣cere non potest. Senium aetatis vel aegritudinem corporis, sinceri∣tatem mentis tenentibus, testa∣menti factionem certum est non auferre.
• * 1.21

  Quod initio vitiosum est, non po∣test tractu temporis convalescere D. 50. 17. 29. l 178. l. 201. l. 210. 1. 80. D. 34. 7. 1. D. 44. 7. 27. non firmatur 18, de Reg. in 6. D. 49. 1. 16. nisi duo, quae sequun∣tur, concurrunt vitii sc. Cessatio, & novissimus Actus, i. e. nisi prin∣cipium ipsius rei utile sequatur, verbis, vel actibus extrinsecus declaratis, veluti Ratihabitione aliqua.
• * 1.22

  Note, He that is enabled to the Principal; that is, the Fine shall not be disabled to do the Ac∣cessory, that is the declaring the uses.
• * 1.23

  M. 1. Mar. 1. Br. Dum non fuit compos mentis 7.